Arevalo v. Barr

18-3110
Arevalo v. Barr
BIA
Verrillo, IJ
A088 428 153
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 30th day of October, two thousand twenty.
5
6 PRESENT:
7 SUSAN L. CARNEY,
8 MICHAEL H. PARK,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 MANUEL ALEJANDRO AREVALO,
14 Petitioner,
15
16 v. 18-3110
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, Youman, Madeo
24 & Fasano, LLP, New York, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Linda S. Wernery,
28 Assistant Director; Thankful T.
1 Vanderstar, Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Manuel Alejandro Arevalo, a native and citizen
10 of Ecuador, seeks review of a September 28, 2018, decision of
11 the BIA affirming a September 6, 2017, decision of an
12 Immigration Judge (“IJ”) denying Arevalo’s application for
13 asylum and withholding of removal. In re Manuel Alejandro
14 Arevalo, No. A 088 428 153 (B.I.A. Sept. 28, 2018), aff’g No.
15 A 088 428 153 (Immig. Ct. Hartford Sept. 6, 2017). We assume
16 the parties’ familiarity with the underlying facts and
17 procedural history.
18 We have reviewed both the IJ’s and the BIA’s decisions
19 “for the sake of completeness.” Wangchuck v. Dep’t of
20 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006) (“When the
21 BIA briefly affirms the decision of an IJ and ‘adopt[s] the
22 IJ’s reasoning in doing so,’ we review the IJ’s and the BIA’s
23 decisions together.” (citation omitted)). We review the
2
1 agency’s legal conclusions de novo and its factual findings
2 for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B);
3 Edimo-Doualla v. Gonzales, 464 F.3d 276, 281-83 (2d Cir.
4 2006). “[T]he administrative findings of fact are conclusive
5 unless any reasonable adjudicator would be compelled to
6 conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The
7 agency reasonably determined that Arevalo failed to establish
8 that he would be persecuted on account of his membership in
9 a particular social group or because of an imputed political
10 opposition to the Revolutionary Armed Forces of Colombia
11 (“FARC”).
12 To demonstrate eligibility for asylum and withholding of
13 removal, an “applicant must establish that race, religion,
14 nationality, membership in a particular social group, or
15 political opinion was or will be at least one central reason
16 for” the claimed persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i),
17 1231(b)(3)(A); Matter of C-T-L-, 25 I. & N. Dec. 341, 346
18 (BIA 2010). “[A]sylum may be granted where there is more
19 than one motive for mistreatment, as long as at least one
20 central reason for the mistreatment is on account of a
21 protected ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d
3
1 Cir. 2014) (internal quotation marks omitted). However, the
2 applicant “must provide some evidence of [a persecutor’s
3 motives], direct or circumstantial.” INS v. Elias-Zacarias,
4 502 U.S. 478, 483 (1992); see also Manzur v. U.S. Dep’t of
5 Homeland Sec., 494 F.3d 281, 291 (2d Cir. 2007).
6 Even assuming that Arevalo’s proposed social group were
7 cognizable, 1 the agency reasonably determined that he failed
8 to provide any direct or circumstantial evidence to
9 demonstrate that gang members had targeted or would target
10 him on account of anything other than his perceived wealth
11 and their general criminal aspirations. See Ucelo-Gomez v.
12 Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (per curiam)
13 (applicant has the burden of demonstrating that persecutors
14 “ha[ve] any motive other than increasing their own wealth at
15 the expense of” the applicant (citation omitted)). Arevalo
16 testified that the gang members threaten anyone in the area
17 with money, and he provided no evidence that gang members had
18 threatened his family or demanded money because of a
1Contrary to Arevalo’s position, the agency was not required to
determine whether the social group was cognizable because it
assumed cognizability and denied relief on nexus grounds. See INS
v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”).
4
1 relationship to the United States. See Melgar de Torres v.
2 Reno, 191 F.3d 307, 314 (2d Cir. 1999) (“general crime
3 conditions” do not constitute persecution on account of a
4 protected ground). Thus, substantial evidence supports the
5 agency’s determination that Arevalo did not establish a fear
6 of persecution based on his membership in a particular social
7 group consisting of “Ecuadorians perceived as U.S. citizens
8 due to presence of more than a decade with indicators of
9 wealth such as consistent remittance payments.”
10 Nor did Arevalo establish that he would be targeted by
11 FARC because it would impute to him an anti-FARC political
12 opinion. In order to demonstrate that past persecution or a
13 well-founded fear of future persecution is on account of
14 political opinion, the applicant must “show, through direct
15 or circumstantial evidence, that the persecutor’s motive to
16 persecute arises from the applicant’s political belief,”
17 rather than merely by the persecutor’s own opinion. Yueqing
18 Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (emphasis
19 added). Resistance to nongovernment entities, such as rebel
20 groups or gangs, is not necessarily a political opinion, nor
21 is it necessarily true that the group believes that any
5
1 resistance to it is politically motivated. Elias-Zacarias,
2 502 U.S. at 482. Arevalo testified that he fears extortion
3 or kidnapping by the FARC because they will perceive him as
4 wealthy. He did not show that FARC would perceive him to
5 have a political opinion, and FARC’s own political platform
6 is insufficient. See Yueqing Zhang, 426 F.3d at 545. Thus,
7 substantial evidence supports the agency’s determination that
8 Arevalo fears that FARC will target him on account of his
9 perceived ability to pay, rather than on account of a
10 protected ground.
11 For the foregoing reasons, the petition for review is
12 DENIED. All pending motions and applications are DENIED and
13 stays VACATED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe,
16 Clerk of Court
17
6